August EWJ 24 - Flipbook - Page 40
The Risks of Relying on
Unlawfully Obtained Evidence
In cases involving unlawfully obtained evidence, the approach of the English Court has typically been
that justice is best served by considering all relevant evidence, even where there has been a breach of law
in obtaining that evidence. The Courts will not necessarily exclude evidence simply because it has been
unlawfully obtained or stolen. Rather, the court has a discretion whether to admit such evidence.
However, there can be broader implications for those who improperly obtain evidence.
The recent case of Bourlakova v Bourlakov [2024]
EWHC 765 (Ch) concerned the use by the Claimants
of private investigators to obtain evidence in support
of a freezing order application. Some of the documentary evidence relied on by the Claimants was said
to be illegally obtained, and some of the documents
were said to be fabricated. Furthermore, some of the
documents obtained by the investigators were privileged to the Defendants. When the issue came to light,
the Defendants obtained an adjournment of the freezing order application, and orders for destruction and
delivery up of the documents concerned. The practical and procedural implications are clear. The Court
also commented that it was “under no illusion as to
the potential seriousness of the acquisition of confidential information belonging to another” and recognised that the relief sought by the Defendants was “not
(yet) made in the context of an action for breach of
confidence”.
also referred to material provided to the solicitors by
the PIs as being potentially privileged and which had
been subject to privilege review by independent counsel. The Report itself exhibited various documents
which were said to evidence a risk of dissipation of assets. The Defendants served evidence in response to
the Injunction Application demonstrating that much
(though not all) of this evidence was forged. The
Claimants therefore said that they would not rely on
the Report but that there was still sufficient evidence
of risk of dissipation to support the Injunction Application. However, in the event, the hearing of the Injunction Application was adjourned.
The Defendants turned their focus to the manner in
which the materials for the Report had been obtained.
An urgent application was made by one of the Defendants seeking information and delivery up of the material privileged to him. That application was
adjourned on provision by the Claimants of certain
information together with the provision of the potentially privileged materials.
Another case demonstrating the risk to those who
procure evidence illegally is FKJ v RVT & Ors [2023]
EWHC 3 (KB). This concerned the allegedly unlawful
acquisition by a law firm partner of 18,000 of his former employee’s WhatsApp messages, which he successfully used to defend proceedings that she had
brought against him in the Employment Tribunal alleging sex discrimination, following her dismissal for
misconduct. The employee subsequently brought a
High Court claim for misuse of private information in
respect of the acquisition of her WhatsApps which
provides an illustration of the residual risk to those
who procure evidence through unlawful means - even
where such evidence is admitted.
The Defendants made a further application for: (i) delivery up and destruction of the Defendants’ confidential information, (ii) an order that the PIs must do
the same, (iii) a prohibition on use of the information,
(iv) termination of the PIs’ instruction, (v) full details
as to the use and dissemination of the information by
the Claimants’ legal team, and (vi) related disclosure
(the Confidentiality Applications). The Confidentiality
Applications also sought various declarations including as to the use of unlawful means by the PIs in obtaining the Defendants’ confidential information and
the absence of any privilege in documents instructing
the PIs or created in furtherance of its investigations
or the use of the Defendants' confidential information.
These were listed to be heard along with the restored
Injunction Application on 26 and 27 March 2024
(pursuant to which the Claimants had confirmed in
further evidence on 19 March 2024 that they were not
relying on the Report and were no longer seeking
asset freezing relief against the Defendants, but were
instead seeking proprietary injunctive relief against
newly joined corporate defendants).
These cases show that although the courts usually
permit deployment of such evidence if relevant to the
primary case, there can be other consequences for the
party who obtained it by improper means. There is a
tension between admitting such material into
evidence, and the problems that can arise when the
material is found to be confidential.
Bourlakova v Bourlakov
The Claimants had used private investigators (PIs) to
obtain information for use in support of an on notice
application for freezing injunctions against various
Defendants (the Injunction Application) which was to
be heard on 21 and 22 February 2024. The Claimants’
evidence in support of the Injunction Application included a solicitor’s affidavit to which a report prepared
by the PIs was appended (the Report). The affidavit
EXPERT WITNESS JOURNAL
During evidence gathering and preparations for the
Confidentiality Applications, it came to light that the
Claimants’ solicitors had been aware since August
2023 that the PIs had obtained potentially privileged
documents belonging to the Defendants. The
Claimants’ solicitors said they had sent these for
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AUGUST 2024
